good and sufficient reasons, do not, or cannot hear and determine the complaint within the time designated, What then? Is the law, as to the case already in progress before the proper tribunal, to be regarded as a dead letter? Are the citizens and contestant alike. to be turned away, and told that the stroke of the clock has paralyzed the arm of the Court, and that they must go without remedy for an alleged violation of public and private right, because that which was not of the essence of the thing to be done, has not been complied with by the officer of the law, either with or without cause? I think not: I can gather no such meaning from the act, and can regard the command as to time, only in the light of an injunction to the Judges to speed the cause, and at the next term, if possible, fulfil the material requirements of the law, by finally determining the case upon its merits. Any other view it seems to me reverses the natural order of things; prefers the unimportant to the material; gives to the minor consideration, namely, the time within which a decision is to be rendered, precedence of the more substantial and weighty matters of the law under consideration; for certainly it is far more essential that the Court shall decide the main question, than to allow it to fall dead before the Judges, who were enjoined to decide it finally and upon its merits, by language quite as explicit as that used to indicate the time within which it ought to be determined. Carpenter's Case seems to have been relied on in support of a contrary view, but that case decides nothing more than that the Supreme Court had no revisatory power by certiorari of proceedings under the Act of July 2d, 1839, and that the decision of the Common Pleas was final-all that Judge GIBSON says in that case is by way of argument in support of this proposition, and in my opinion does not apply to the question now before this Court; nor does the point appear to have been even incidentally raised in the Court above; unless the mere citation of the words of the law by the Chief Justice in support of a totally different principle, are capable of such construction and application, which I think they are not. I am for the reason stated of the opinion that the case of the contestant is still in Court for determination and final judgment on the merits. Upon the question as to the proper entry to be made on the record, where the Court is equally divided on the question of jurisdiction, I do not deem it necessary to say more than that the case of Bingham vs. Cabot, 3 Dallas 19, cited upon the argument by the counsel for the respondent, is to be regarded only as if a motion for a venire de novo had been made, which motion fell because the Court were equally divided upon the question as to whether the Court below had jurisdiction of the original cause of action. LUDLOW, J., dissented. The case was subsequently determined in favor of the contestant. I. The foregoing case has never been reported, and as it embodies the judgment of a court having exclusive jurisdiction of the matter in controversy, it is well worthy of preservation. It is also, we believe, the only case in Pennsylvania where the clause of the Act of 2d July 1839, directing certain contested elections to be decided at the next term after they are commenced, has received a judicial construction. In Carpenter's Case, 2 Harris 486, the Supreme Court of Pennsylvania, in an opinion delivered by Chief Justice GIBSON, decided that the determination of the Common Pleas as to the election of a prothonotary or clerk, was, by virtue of the fifth section of the Act of 2d July 1839, final, and quashed a writ of certiorari which had issued to remove the proceedings in such a case. Carpenter's Case has never been overruled, though a minority of the judges have since contended for the power to issue a certiorari for the purpose of examining the regularity of the proceedings of the court below, but not to rejudge the merits. Scheetz's Case, cited in note to Br. Purd. 681, ed. 1853; and the still later case of the certiorari to Luzerne Co. in the matter of VOL. XI.-27 the contested election of E. B. Collings, determined in March, 1862. II. The rule of interpretation enunciated by the Common Pleas in this case, is of importance, beyond the point decided in the particular cause. The opinion of the Court defines clearly the rules governing the construction of statutes, and establishes, we think, with much ability, the true distinction between those provisions in a statute, as to time, which are merely directory, and those which are prohibitory. Where acts are directed to be done by public officers, and especially where acts, regarding the rights of the public or of private suitors, are directed to be done by judicial officers, at a certain time, the acts may be done afterwards, even where a penalty is provided for their omission at the proper time. And the cases, generally, have been determined on the very proper ground that it is unjust to deprive the public or private suitors of rights which they have not forfeited by any neglect of their own. Thus in the case of Rex vs. Sparrow, 2 Strange 1123, the justices had been guilty of a neglect in not appointing overseers of the poor within due time, and a mandamus was issued by the King's Bench to compel them to appoint them afterwards for the sake of the poor. And Lord MANSFIELD, in Rex vs. Loxdale, 1 Burr. 445, said: "the poor could not have had a specific remedy in that case, unless the justices might appoint after the precise time," and that the act of 43 Eliz. "did not mean that the poor should lose the equity and benefit of the act, if the justices did not appoint within that time." The principle of the decision in Stevenson vs. Lawrence is the same. The public, who are mainly interested in preventing and overturning frauds at elections, are not to lose their statutory right to a judicial investigation in cases of contested elections, where they have been guilty of no laches. The public can have no control over the time which may be necessary for a proper hearing and determination of a cause by the judiciary, which time may, and, indeed, must vary greatly, according to the circumstances of each particular case, and the pressure of business before the Court. Where, however, an act is to be done by the public, or by any number of citizens on behalf of the public, within a certain time, the same reason does not exist for holding the command of the statute to be but directory, as in the other case, because it may be entirely within the power of the parties to perform the specified act within the time designated, and consequently, if they do not, they are guilty of laches. III. The recent case of Horton & Heil vs. Miller, 2 Wright 270, might seem at first glance to conflict with the foregoing decision in Stevenson vs. Lawrence, but an examination of the case will show that it is entirely reconcilable with it, and serves to illustrate the distinction taken between acts to be done by a court, and acts to be done by a party. The syllabus states broadly that "a court term is a definite and fixed term prescribed by law for the administration of judicial duties, within which the business of the term should be transacted. Terms may be extended to a period of time outside of their proper limits by adjournment, but the fixed term is not thereby enlarged." The facts of the case were these. The plaintiff declared on an insolvent bond, executed by defendants, dated June 21st 1858, in the penal sum of $360, upon condition that Horton, one of the defendants, should appear at the next term of the Court of Common Pleas of Schuylkill county," and then and there present his petition for the benefit of the insolvent laws, &c. The next term was September Term, 1858, which commenced September 6th, and by law was to continue four weeks. The defendant, Horton, did not appear within that time, or present any petition for the benefit of the insolvent laws. The term was adjourned to December 2d, 1858. On November 25th, 1858, suit was brought on the bond, and the Court decided that nothing having been done within the time specified in the bond (which was held to be the four weeks fixed by law for the duration of the term), the condition was held to have been broken, and the plaintiffs' case was sustained. The act of omission, however, was an act to be done by a party, the defendant, and of course the direction as to time was held to be imperative. This case, therefore, does not in the least impeach the doctrine of Stevenson vs. Lawrence. M. United States District Court, Eastern District of Missouri.-Special Term, September, 1862. UNITED STATES vs. ONE HUNDRED AND TWENTY-NINE PACKAGES, W. H. PROBASCO, CLAIMANT. The Act of Congress of July 13th 1862, is not a penal but a revenue statute, and is to be construed liberally, so as to accomplish its proposed object. Where a party for fraudulent purposes mixes up goods prohibited by a revenue act with those not prohibited, the whole will be forfeited. A citizen may be forbidden by a municipal law to do what would be lawful for a neutral to do on the high seas. A sale of contraband property to a belligerent in a neutral territory is a violation of neutrality, and, à fortiori, such sale in one belligerent country by a citizen or domiciled person thereof, is a breach of allegiance. Hence the Act of July 13th 1861, prohibits every act done towards the execution of a design to carry on, without a "permit," commercial intercourse between the interdicted and other states, and it is violated not only when a vessel has actually sailed with the goods on board, but the moment the goods are started, even on land, towards the forbidden destination. The application for a "permit" is evidence of the intention to proceed, and the use of fraudulent invoices to procure the "permit," shows the intention to be fraudulent. The shipment of goods under color of that permit, is a step taken in execution of that fraudulent intent -is an overt act. Such goods are "proceeding to" the interdicted port within the meaning of the Act of July 13th 1861, and the shipper, under the Act of May 20th 1862, is guilty of an "attempt" to transport them in violation of law. The condition of peace or war, public or civil, in a legal sense, must be determined by the political department of the Government, and the Courts are bound by that decision. By the Act of July 13th 1861, the prohibition of commercial intercourse is to be in force "so long as such condition of hostility shall continue." The same power which determines the existence of war or insurrection, must also decide when the condition of hostility" ceases. In a legal sense the state of war or peace is not a question in pais for Courts to determine. It is a legal fact ascertainable only from the decision of the political department. Hence, when the President has proclaimed a State to be in insurrection, the Courts must hold that this condition continues until he decides to the contrary. The same rules apply as to the exceptions from the interdict, of such parts of the insurrectionary States "as may maintain a loyal adhesion to the Union and the Constitution, or may be from time to time occupied and controlled by forces of the United States engaged in the dispersion of said insurgents." Such exceptions, and the legal status of such parts of the said States, are to be determined by the President. Libel of information under the Act of Congress, July 13th, 1861. W. W. Edwards and C. S. Hayden, for the United States. The case is fully stated in the opinion by TREAT, J.-The facts submitted in this case are substantially these: The claimant proposing to make a shipment of merchandise to Memphis in the State of Tennessee, applied to the surveyor of the port of St. Louis for a permit, under the regulations of the Secretary of the Treasury pursuant to the Act of July 13th 1861. He represented that the proposed shipment contained, among other things, 100 barrels of cement. A "permit" having been granted for the specified goods, the claimant sent on board of a steamer, bound for Memphis, said 100 barrels and the 129 packages now in litigation. The surveyor caused said shipment to be examined after it was on board of said steamer and whilst she still lay at the wharf here, and detected, that instead of 100 barrels of cement, there were 100 barrels of whiskey packed in cement for the purpose of concealing the same. Thereupon the whole shipment was seized. The agreement of facts as filed, states that Memphis, the port of destination, is not now "in a condition of hostilities" against the United States, and that it is "occupied and controlled by forces of the United States, engaged in the dispersion of the insurgents." The claimant does not interpose a claim for the 100 barrels of cement and the whiskey packed therein; but solely for the 129 packages which contain no prohibited goods. The first proposition urged by his proctor, is, that the statute of July 13th 1861, is a penal statute in derogation of common right, and consequently it is to be strictly construed. Common right, it must be observed, requires the bonds of society to be preserved so as to prevent anarchy, and the consequent destruction of all safeguards for persons and property. Every member of society is directly interested in its preservation. Governments are instituted for the common good; and when a blow is aimed thereat, every citizen's rights are assailed. Measures adopted |